Election Law Blog

Milwaukee Journal-Sentinel:

A federal judge expressed skepticism toward one of President Donald Trump’s lawsuits challenging Wisconsin’s election results on Friday, a day after the state Supreme Court rejected similar litigation. 

U.S. District Judge Brett Ludwig — a Trump appointee — told an attorney for the president he was asking for “pretty remarkable declaratory relief” by asking to have the fate of Wisconsin’s 10 electoral votes decided by the Republican-led Legislature instead of voters. 

He questioned whether the case should even be before him, noting Trump is arguing the state Legislature has the power under the U.S. Constitution to decide who to send to the Electoral College. 

“If that’s the case, why are we doing anything in this court and if that’s the appropriate arena for a remedy, why isn’t the plaintiff going to the Legislature?” Ludwig asked. 

From the concurrence:

The Wisconsin Voters Alliance and a group of Wisconsin voters bring a petition for an original action raising a variety of questions about the operation of the November 3, 2020 presidential election. Some of these legal issues may, under other circumstances, be subject to further judicial consideration. But the real stunner here is the sought-after remedy. We are invited to invalidate the entire presidential election in Wisconsin by declaring it “null”—yes, the whole thing. And there’s more. We should, we are told, enjoin the Wisconsin Elections Commission from certifying the election so that Wisconsin’s presidential electors can be chosen by the legislature instead, and then compel the Governor to certify those electors. At least no one can accuse the petitioners of timidity.

Such a move would appear to be unprecedented in American history. One might expect that this solemn request would be paired with evidence of serious errors tied to a substantial and demonstrated set of illegal votes. Instead, the evidentiary support rests almost entirely on the unsworn expert report of a former campaign employee that offers statistical estimates based on call center samples and social media research.

This petition falls far short of the kind of compelling evidence and legal support we would undoubtedly need to countenance the court-ordered disenfranchisement of every Wisconsin voter. The petition does not even justify the exercise of our original jurisdiction.As an initial matter, the Wisconsin Supreme Court is not a fact-finding tribunal. Yet the petition depends upon disputed factual claims. In other words, we couldn’t just accept one side’s description of the facts or one side’s expert report even if we were inclined to believe them.

That alone means this case is not well-suited for an original action. The petition’s legal support is no less wanting. For example, it does not explain why its challenge to various election processes comes after the election, and not before. Nor does it grapple with how voiding the presidential election results would impact every other race on the ballot, or consider the import of election statutes that may provide the “exclusive remedy.”

These are just a few of the glaring flaws that render the petition woefully deficient. I therefore join the court’s order denying the original action. Nonetheless, I feel compelled to share a further observation. Something far more fundamental than the winner of Wisconsin’s electoral votes is implicated in this case. At stake, in some measure, is faith in our system of free and fair elections, a feature central to the enduring strength of our constitutional republic. It can be easy to blithely move on to the next case with a petition so obviously lacking, but this is sobering. The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen. Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election. Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.

I do not mean to suggest this court should look the other way no matter what. But if there is a sufficient basis to invalidate an election, it must be established with evidence and arguments commensurate with the scale of the claims and the relief sought. These petitioners have come nowhere close. While the rough and tumble world of electoral politics may be the prism through which many view this litigation, it cannot be so for us. In these hallowed halls, the law must rule.

Our disposal of this case should not be understood as a determination or comment on the merits of the underlying legal issues; judicial review of certain Wisconsin election practices may be appropriate. But this petition does not merit further consideration by this court, much less grant us a license to invalidate every single vote cast in Wisconsin’s 2020 residential election.

The dissenters led by the Chief Justice would have taken the case, but expressly stated that the concerns of the concurrence were premature, and that the court often does not grant the remedies sought by litigants.

Order.

Order and dissent.

AP:

The official serving as President Donald Trump’s eyes and ears at the Justice Department has been banned from the building after trying to pressure staffers to give up sensitive information about election fraud and other matters she could relay to the White House, three people familiar with the matter tell The Associated Press.

Heidi Stirrup, an ally of top Trump adviser Stephen Miller, was quietly installed at the Justice Department as a White House liaison a few months ago. She was told within the last two weeks to vacate the building after top Justice officials learned of her efforts to collect insider information about ongoing cases and the department’s work on election fraud, the people said.

Stirrup is accused of approaching staffers in the department demanding they give her information about investigations, including election fraud matters, the people said. They spoke on condition of anonymity because they were not authorized to publicly discuss the matter.

The effort came as Trump continues to level baseless claims that he won the election and alleges without evidence that massive voting fraud was responsible for his defeat to President-elect Joe Biden.

See the order here. My post from yesterday:

Rep. Kelly Has Apparently Withdrawn His Emergency Request for a SCOTUS Injunction to Reverse Pennsylvania Results, As He Awaits PA Supreme Court Ruling on Stay

From the opposition to the stay request filed in the PA Supreme Court:

Once again, Petitioners are asking the courts to take expedited action in response to an emergency of Petitioners’ own making. This Court dismissed the Petition for Review because Petitioners had waited far too long—until weeks after the second election carried out under Act 77—to bring it. Petitioners then submitted an Emergency Application for a Writ of Injunction to the U.S. Supreme Court on Tuesday, December 1, only to withdraw it the next day. Now, Petitioners return to this Court to ask it to address issues of federal law that Petitioners have never raised before. If Petitioners believed that this case raised issues of federal law, they had every opportunity to present those issues to the Commonwealth Court and to this Court. Nonetheless, in their voluminous filings, which included a 98-paragraph Complaint and more than 155 pages of briefing, Petitioners never once argued that the U.S. Constitution provides a basis for the relief Petitioners now seek. It is simply too late to invoke the U.S. Constitution now; they have waived their arguments. For this reason, and because the fatal flaws in Petitioners’ original case mean that the Supreme Court of the United States is highly unlikely to grant relief, this Court should deny Petitioners’ Application.

Presumably Rep. Kelly will refile at SCOTUS once this the PA Supreme Court denies a stay.

Looking forward to viewing this event at the Stanford Cyber Policy Center.

WaPo reports.

What a lineup:

Fortifying Our Electoral System Against Attacks: Lessons Learned From the 2020 Presidential Election

Washington, D.C. — The 2020 election saw unprecedented attacks seeking to undermine public confidence in our elections. Central to these attacks were the repeated assertion of false claims about widespread voter fraud, concerted attempts to disenfranchise voters, and well-publicized efforts to convince state legislatures to ignore the popular vote.

With the December 8 safe harbor deadline for states to appoint their electors approaching, please join the Center for American Progress for an online event with some of the nation’s foremost experts in election law and governance, including Benjamin Ginsberg, Norman Ornstein, and Janai Nelson. This group of panelists will discuss the November election’s unprecedented strain on the U.S. election system and its resiliency; what worked and what did not; and what we can do to fortify the system to ensure that all Americans entitled to cast a vote are able to do so easily and with full public confidence.

If you have questions for our panel, please submit them on Twitter using the hashtag #FortifiedElections or via email to CAPeventquestions@americanprogress.org.

WHO

Distinguished panelists:
Benjamin Ginsberg, Counsel to multiple presidential campaigns; former co-chair of the bipartisan Presidential Commission on Election Administration
Janai Nelson, Associate Director-Counsel, NAACP Legal Defense and Education Fund
Norman Ornstein, Resident Scholar, American Enterprise Institute; Board Chair, Campaign Legal Center

Moderator:
Mara Rudman, Executive Vice President for Policy, Center for American Progress

WHEN

Monday, December 7, 2020
11:30 a.m. – 12:30 p.m. ET

WHERE

You must RSVP to watch the livestream event by clicking this link. An email will then be sent with instructions on how to watch.